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To Sign or Not to Sign: Sports and Recreational Releases

January 25, 2013

Most of us have been asked to sign one of these forms on behalf of our children or ourselves. They are often part of a larger registration form. They may be called “releases” or “hold harmless agreements.” In each case, the purpose is the same, that is to prevent you from bringing a claim against the organization or business if you or your child is injured.

If you refuse to sign, you will likely be denied the opportunity to participate in the sports or recreational activity. So what happens if you do sign?

First, and perhaps foremost, the risk that you or your child will suffer a serious injury while participating in a recreational activity is very small indeed. While some activities are riskier than others, it is even less likely that an injury would occur under circumstances that would allow you to successfully pursue a claim. Finally, if you or your child sustained an injury that would entitle you to bring a claim, it is unlikely that signing a release or hold harmless agreement in advance would prevent you from pursuing that claim.

Wisconsin courts have routinely refused to enforce efforts to bar claims before an injury has occurred. The only cases in which Wisconsin has been willing to enforce such an agreement have involved unusually hazardous activities, such as motorsports. The courts have rejected these agreements in the context of skiing accidents, swimming facilities and a number of other activities.

In Atkins v. Swimwest, the court refused to enforce a release executed by an adult swimmer before she drowned at a recreational swimming facility. The court, echoing other decisions, held the release was void because the language was overly broad and all inclusive. The form which the swimmer had signed served more than one purpose. Finally, the court focused on the fact that there was little or no opportunity to bargain or negotiate in regard to the language of the release. Those criticisms apply to virtually all of these release forms.

Release forms may discourage people from bringing claims, but they are unlikely to serve as a legal bar if a claim is brought. On the whole it is unlikely that a Wisconsin court would enforce a release or hold harmless agreement in the context of normal recreational activities engaged in by adults and children.

Parents are often asked to sign releases or hold harmless agreements to permit their children to participate in sports or recreational activities. While Wisconsin has not considered the validity of these agreements, courts in a number of other states have. They have almost uniformly found them to be unenforceable. As the Illinois court said in Meyer v. Naperville Manor, Inc., 634 N.E.2d 411 (1994) “It is now the general rule that, in the absence of statutory or judicial authorization, a parent cannot waive, compromise or release a minor child’s cause of action.”

Wisconsin Statute Section 807.10 requires that any settlement on behalf of a minor be approved by the court. That is so even when the minor has an attorney. Given the statutory language and the public policy that it reflects, it is highly unlikely that a court would enforce a release signed by a parent before a child had even sustained an injury.

Many of the agreements parents are asked to sign are called “indemnity agreements” or “hold harmless agreements.” Both seek to make a parent responsible for any injury claim by a child. As a Maryland court noted in Rosen v. BJ’s Wholesale Club, Inc., 206 Md. App. 708, 51 A.3d 100 (2012), “Indemnification clauses in contracts executed by parents on behalf of their minor children create an unacceptable conflict of interest between a parent and the child.” Given Wisconsin’s public policy as reflected in Atkins v. Swimwest and Section 807.10, it is highly unlikely that a Wisconsin court would uphold an indemnity or hold harmless agreement executed by a parent.

For more information about "To Sign or Not to Sign: Sports and Recreational Releases," contact Mike Riley at mriley@axley.com or 608.283.6778.

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